Transgender Rights and the End of the New South

Pat McCrory, the governor of North Carolina, has filed a lawsuit against the federal government—and the state has been sued in return—over House Bill 2, which infringes on the rights of transgender people.

Photograph by Gerry Broome / AP

On Monday, two North Carolinians squared off over the state’s controversial House Bill 2, which requires transgender people to use the bathroom matching their “biological sex” in public schools and government buildings and invalidates local laws protecting transgender people from discrimination. Both Pat McCrory, the governor of North Carolina, and Loretta Lynch, the U.S. Attorney General, grew up partly in Greensboro, a site of anti-segregation sit-ins in 1960, and Lynch recalled that history by comparing H.B. 2 to Jim Crow laws. “Let us reflect on the obvious but often neglected lesson that state-sanctioned discrimination never looks good in hindsight,” she said, as she announced that the Department of Justice is suing North Carolina, claiming that H.B. 2 violates federal laws forbidding sex discrimination.

Earlier that day, McCrory’s office had filed its own federal lawsuit, which attempted to protect the state from federal anti-discrimination action against H.B. 2. “North Carolina does not treat transgender employees differently,” according to the lawsuit. “All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgendered status.” Such bland assertions of neutrality have an infamous place in the law. Before the Supreme Court established a right to same-sex marriage, in 2015, North Carolina forbade gay and straight alike to wed members of the same sex. Before the Court invalidated laws against racial intermarriage, in 1967’s Loving v. Virginia, the state forbade both black and white people to marry someone of the other race. All these laws were defended on the grounds that they treated everyone alike. So, for that matter, were the original Jim Crow segregation laws. In 1896, upholding separate-but-equal accommodations, the Supreme Court held that, if “the enforced separation of the races stamps the colored race with a badge of inferiority,” this was “solely because the colored race chooses to put that construction on it.”

McCrory’s suit looks more like political theatre than a serious attempt to preserve H.B. 2. On April 19th, the Fourth Circuit Court of Appeals, which includes North Carolina, adopted the Obama Administration’s interpretation of federal sex-discrimination law to invalidate a local school-board policy that assigned students to bathrooms by “biological genders.” The court accepted the federal government’s argument that the prohibition on sex discrimination in Titles VII and IX of the Civil Rights Act includes discrimination on the basis of gender identity, and that “biological” bathroom assignments are just this sort of discrimination. (The Fourth Circuit reported that, in public hearings on school-bathroom assignments, the plaintiff in the case, a transgender boy, had been called a “freak” and “compared to a person who thinks he is a ‘dog’ and wants to urinate on fire hydrants.”)

That McCrory would seek out this wrong-side-of-history position reveals a lot about the fractured and desperate state of the Republican Party. The governor took office, in 2013, as the consummate country-club Republican. He had spent fourteen years as the mayor of Charlotte, a banking capital, where he presided over robust growth and—unusual in the South—the construction of a light-rail system. He was a candidate in the “New South” tradition, a political manner that is also a development strategy. In the sixties, as other parts of the white South dug in against desegregation, North Carolina’s politicians found a different formula: accept the national consensus on civil rights and attract employers with low wages, weak unions, and business-friendly laws. The state’s population more than doubled between 1960 and 2010, as a formerly rural, agricultural state developed national centers of technology and finance. The previous New South governors were Democrats, but many saw McCrory as their natural successor in a state that narrowly supported Barack Obama in 2008 but in 2010 handed control of the legislature to Republicans for the first time since Reconstruction.

Since taking office, McCrory has mostly been back on his heels as a Tea Party legislature, installed with decisive support from the activist donor Art Pope (whom Jane Mayer wrote about in 2011), has set the state’s agenda. McCrory has signed laws restricting abortion access, cutting back on early voting and requiring voter identification, slashing unemployment benefits, and repealing the state’s Racial Justice Act, which commuted the death penalty for people sentenced in racially inequitable jurisdictions. North Carolina is one of nineteen states that have refused to expand Medicaid under the Affordable Care Act (and the fourth-largest, after Texas, Florida, and Georgia). The advocacy group Families USA estimates that five hundred and ninety-three thousand North Carolina residents lack health insurance because of the state’s refusal.

The Tea Party has shared McCrory’s deregulatory, tax-cutting economic agenda, but it has led with culture-war issues. The year McCrory won the governorship, the legislature put forward a constitutional ban on same-sex marriage, which passed with sixty per cent of the vote. This blend of tactics has defined most state-level Republican parties during the Obama years, when the Republicans took power in statehouses across the country, and McCrory seems to have made his peace with it. Polls showed him lagging in a tight reëlection race when he called North Carolina’s part-time legislature into emergency session in late March. Both houses passed H.B. 2 on March 23rd, and McCrory signed it that night. The only local anti-discrimination statute that it overrode was one passed a month before in Charlotte, where McCrory had served seven terms as mayor.

Now the New South elements of McCrory’s governing style are falling to pieces. H.B. 2 may have seemed an ordinary measure of culture-war politics when the governor signed it, but the consensus position on L.G.B.T.Q. rights has changed so fast that it may secure his place as the Orval Faubus of public bathrooms. McCrory’s Democratic opponent, Roy Cooper, the state’s attorney general, who has announced that his office will not defend H.B. 2 against legal challenge, has led McCrory in every poll since the law was passed. Since H.B. 2 became law, PayPal and Deutsche Bank have scrapped expansion plans for North Carolina, the N.B.A. and N.C.A.A. have suggested that they may not hold future events in the state, and a caravan of entertainers have cancelled shows, including Bruce Springsteen and Cirque du Soleil. New South governors measure themselves by the investments they attract. When the cultural divisiveness of Tea Party politics drives out business and entertainment, it becomes New South kryptonite.

McCrory’s economic policy may also be vulnerable in the age of Bernie Sanders and Donald Trump. Along with laying to waste transgender rights, H.B. 2 forbids local governments from passing their own minimum wages or other laws protecting workers. This was recently uncontroversial state Republican policy, but Trump won the Republican primary on March 15th, a week before McCrory signed H.B. 2, with a populist campaign that has angered and alienated country-club economic free-marketers—and exposed the thinness of their rank-and file support. After losing heavily evangelical North Carolina to Trump, Ted Cruz seized on the transgender bathroom issue in his last stand, the Indiana primary, where he hammered Trump for saying that people should use whatever bathroom they consider “appropriate.” Trump shrugged, hammered Cruz on trade agreements, and drove him from the race.

Trump’s version of the Republican Party, at least as he has expressed it in the primaries, liquidates both sides of McCrory’s strategy. On the cultural front, it turns away from personal and religious morality to stir up an us-versus-them energy with nationalist xenophobia. Economically, it replaces a blandly relentless laissez-faire program with aggrieved attacks on incompetent élites—sometimes in the name of tax cuts, sometimes in support of trade protectionism, universal health care, and rebuilding crumbling infrastructure. Trump’s primary campaign and Barack Obama’s Administration, in very different ways, have left Pat McCrory’s Republicanism with hardly any place to stand.

It isn’t clear what will replace it. Roy Cooper seems poised to retake the New South strategy for the Democrats, aligning himself with the national majority on civil rights while flogging H.B. 2 for discouraging investment. In interviews, McCrory seems miffed that so many people care so much. He has blamed “the political left” for confronting him with “an issue no one was talking about,” and has conceded, with a baffled air, “It’s a dramatic change in society norms in a very, very short period of time.” He has also grabbed at a Trump theme: “This political correctness is gone amok.” The haplessness is not just his: a politician who followed established scripts, he has joined much of his party in groping for lines now that the script is gone.